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District Court 22 August 2013

R v Ortiz

[2013] NSWDC 282

Theft & property
CRIMINAL LAW SENTENCE

Citation: R v Ortiz [2013] NSWDC 282
Court: District Court of New South Wales
Date: 22 August 2013
Judge(s): Norrish QC DCJ

Background

The offender, a Colombian national who had entered Australia using a Mexican passport to which he was not legally entitled, appeared for sentencing on two counts of accessory before the fact to robbery in company. The robberies occurred in May and June 2012 and targeted jewellery merchants: the first at Killara, involving jewellery valued at approximately $200,000, and the second at Haberfield, involving jewellery and other property valued at approximately $770,000 in total.

The prosecution case was that the offender participated in surveillance of the victims and coordinated with co-offenders in the lead-up to each robbery, but was not alleged to have been a principal in the planning or physical execution of the offences. His role fell within the accessorial category of inciting, procuring, counselling, hiring, and commanding the persons who carried out the robberies.

The offender had pleaded guilty and was sentenced on the basis of agreed facts. He had been in custody since 21 June 2012.

  • The appropriate sentence for two offences of accessory before the fact to robbery in company, having regard to the offender's role, moral culpability, and personal circumstances
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard ratio of non-parole period to head sentence
  • The weight to be given to the offender's plea of guilty, his personal history, psychological evidence, and the utilitarian value of cooperation
  • The relevance and utility of sentencing statistics for comparable offences
  • The application of the totality principle when imposing sentences for multiple offences

Decision

His Honour found that, while the offender was not a principal, his accessorial role was serious. The two robberies targeted vulnerable jewellery merchants and involved sophisticated surveillance and planning across multiple locations. The court accepted that the offender could not be found to have known the precise value of the property to be stolen, but held that he must have known substantial property was at stake, particularly by the time of the second offence given his involvement in the first.

The offender's moral culpability was assessed as meaningful but below that of the principal offenders, who had not been apprehended. His Honour noted that sentences imposed on principal offenders in such matters would have been substantially greater. The court accepted that the offender's youth (he was 25 at the time), his personal background, including a difficult upbringing in Colombia, and his guilty plea were relevant mitigating factors, though the weight of the plea was limited by the strength of the evidence against him.

Special circumstances were found to exist. Because the offender had entered Australia illegally and would be deported upon release, any period on parole in the community would be very short or non-existent. This meant the rehabilitative and supervisory purposes ordinarily served by a longer parole period could not be achieved. His Honour found that an extended non-parole period relative to the head sentence was warranted to allow adequate time for the offender to engage with rehabilitation programs during custody.

On the utility of sentencing statistics, the court observed that the 22 comparable cases provided were of almost no practical assistance, given the small sample size and absence of information about the facts and objective seriousness of those matters.

Orders Made

  • Count 1 (accessory before the fact to robbery in company, Killara, 30 May 2012): imprisonment of 4 years and 6 months
  • Count 2 (accessory before the fact to robbery in company, Haberfield, 12 June 2012): imprisonment of 4 years and 6 months
  • Sentences partially accumulated, resulting in a total head sentence of 6 years and 9 months
  • Non-parole period of 4 years, commencing 21 June 2012, with eligibility for parole from 20 June 2016
  • Upon release, the offender to be taken to immigration detention and returned to his country of origin

Key Takeaways

  • Accessorial liability before the fact to robbery in company can still attract a significant custodial sentence, with the court assessing moral culpability by reference to the seriousness of the ultimate offence committed and the nature of the accessory's contribution.
  • A guilty plea carries limited mitigating weight where the evidence against the offender is strong, consistent with the principles in R v Thomson and Houlton and R v Henry.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be established where an offender faces near-certain deportation on release, leaving insufficient time for parole supervision to serve its rehabilitative purpose.
  • Sentencing statistics drawn from a small sample, without accompanying facts about objective seriousness, provide minimal guidance to a sentencing court and do not substitute for the primary task of assessing the offender's conduct against the maximum penalty.
  • Where an offender has entered Australia using false identity documents, this forms part of the factual background relevant to sentencing, including in assessing the realistic prospects of post-release supervision.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Hemsley [2004] NSWCCA 228
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Veen (No 2) v The Queen (1988) 164 CLR 465
- R v Olivieri [2007] NSWSC 142
- R v Murchie [1999] NSWCCA 424
- R v Lesi [2004] NSWCCA 63
- R v Stanley [2003] NSWCCA 233
- R v Henry (1999) 46 NSWLR 346
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Pearce v R (1998) 194 CLR 610